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Same-Sex Marriage Partners Amending Income Tax Returns

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The instructions to
IRS Form 1040-X, Amended U.S. Individual Income Tax Return (revised as of December 2013),
address same-sex partners' ability to
amend their income tax returns to claim married
filing jointly status: For federal tax purposes, individuals of the same
sex are considered married if they were lawfully married in a state (or foreign
country) whose laws authorize the marriage of two individuals of the same sex,
even if the state (or foreign country) in which they now live does not
recognize same-sex marriage. If you filed a return while you were married to
someone of the same sex, you may be able to amend the return to file as married
filing separately or married filing jointly.

Same-sex spouses. You may amend a return filed before
September 16, 2013, to change your filing status to married filing separately
or married filing jointly. But you are not required to change your filing
status on a prior return, even if you amend that return for another reason. In
either case, your amended return must be consistent with the filing status you
choose. You must file the amended return before the expiration of the period of
limitations.

Married filing
jointly or separately often results in the payment of more income taxes than are assessed against two
single people. This is often referred to
as the "marriage penalty." Conversely, if estate taxes are due, the unlimited
marital deduction will result in a
deferral until the death of both spouses. Thus, it may be more likely that a surviving spouse will seek a
refund of estate taxes as a result of
the Supreme Court's decision in United
States v. Windsor,1 than
amend income tax returns. Will the duty
of consistency require the survivor to amend the income tax return for the year
of death and file it as married, filing jointly or separately? The instructions
to IRS Form 706, United States Estate (and Generation-Skipping Transfer) Tax
Return (revised as of August 2014), address same-sex marriage, but not as
clearly as the income tax instructions:On June 26, 2013, the United States
Supreme Court held that Section 3 of the Defense of Marriage Act, which said
that the terms "marriage" and "spouse" only apply to
heterosexual couples, was unconstitutional. (United States v. Windsor,
570 U.S. 12 (2013)). The ruling impacts
a number of federal laws, including those governing the reporting and collection of federal
taxes. For federal tax purposes, the IRS
recognizes same-sex marriages that are valid in the state where they were entered into, regardless of
the married couple's residence. See Rev. Rul. 2013-17, 2013-38 I.R.B.
201. If you believe the new law may affect your estate or gift tax liability or
filing requirement, please continue to monitor www.IRS.gov for additional
guidance on the application of Windsor.

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